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EFF Urges Appeals Court to Keep Protecting Fair Use

EFF asked the Second Circuit Court of Appeals today to reject a last-ditch attempt by the Authors Guild to block the Google Books project and rewrite the rules of fair use.

This is a long-running case that culminated in a tremendous victory in November. After years of litigation, Judge Denny Chin ruled that Google Books does not infringe copyrights in the books it indexes. But the Authors Guild appealed Judge Chin’s clear-headed decision. EFF—joined by Public Knowledge and the Center for Democracy and Technology—filed an amicus brief with the appeals court today, asking the court to affirm the decision below and help ensure that fair use continues to operate as a crucial safety valve for innovation.

In the Google Books project, Google has been cooperating with libraries to digitize books and create a massive, publicly available, searchable database. Users enter a keyword, and get results including titles, page numbers, and small snippets of text. Understandably, it’s become an invaluable tool for librarians, researchers, and the public.

But the Authors Guild has argued that its members are owed compensation if their books are digitized and included in the database, even though participating in the database benefits those authors by helping readers find their works. For example, many librarians say they have purchased new books for their collections after learning of them through the Google Books project. Nonetheless, the Guild still contends that the mere fact that a whole book was digitized means that authors’ copyrights were violated.

In this latest appeal, the Authors Guild (and its supporters) claim that fair use is being unjustly expanded, portraying Judge Chin’s ruling and other recent court opinions as some kind of fair-use creep, stretching beyond the original intent of the doctrine. Specifically, the Guild argues that the first of the four statutory fair use factors—the purpose of the use, which asks whether the use of the copyrighted material is transformative and/or non-commercial—weighs against Google. The Authors Guild and its amici insist that a use cannot be transformative if it doesn’t add new creative expression to the pre-existing work. But as Judge Chin so rightly recognized, a use can be transformative if serves a new and distinct purpose.

Which is a good thing. As EFF's amicus brief explains, this case is just one of many where copyright owners seek to use the copyright laws to shut down new technologies. And the cramped interpretation of fair use that the Guild and its amici offer has been argued with increasing frequency in recent years, in large part because technological innovation increasingly depends on and facilitates the use of copyrighted works. In the 21st century, technological innovation often depends on copying and reverse engineering copyrighted works, in many ways and at scale. If that copying—most of which is entirely invisible to the public—infringes copyright, then huge swaths of innovation must come to a halt, to the public’s detriment and with little benefit to authors.

Fortunately that is not the rule. Fair use operates precisely as it is supposed to when it protects this kind of technological use. Copyright was always intended to protect and indeed foster innovation, and a robust fair use doctrine is one of the key means by which it accomplishes that purpose. We hope the appeals court understands this as well as Judge Chin did in November.